In that universe, nobody is talking about an end to nearly 50 years of nationwide access to abortion rights.
But here we are.
What happens if the court overturns Roe v. Wade? Mississippi is one area where availability of legal abortion would decline precipitously if the ruling is overturned. Abortion access would not simply end nationwide, but rather state laws would take over.
What brings us to this moment is not a mass movement of Americans, but rather two unexpected Supreme Court deaths, some extraordinary maneuvering by then-Senate Majority Leader Mitch McConnell and a legal challenge by Mississippi.
The Supreme Court can influence elections. Court nominations have featured to different degrees in each of the two most recent presidential elections, and in both cases the voters most motivated by the issue were supporters of the Republican candidate.
How will the court feature next? With a safe conservative majority and without an open seat or a recently confirmed new justice, it is possible the issue of court appointments could lose some of its potency for Republicans, who now have the conservative court they long sought.
Democrats, meanwhile, have made an appeal to female voters central to their platform and pitch, and a court decision that ends nationwide access to abortion services would certainly reenergize that particular issue for them, although Justice Stephen Breyer’s wish is that court appointments were less political, not more so.
Politics has everything to do with it and that will continue to be the case.
The American public in general doesn’t want Roe overturned. A recent CNN review of polling on the issue included recent national polls that showed between 61% and 69% of Americans did not want to see the precedent ended. There’s been steady majority support across the country for legal abortion since the mid-’90s.
What has changed is the size of the partisan divide on the issue. Abortion has become increasingly polarized over the past 15 years, in large part because of growing support for legalized abortion among Democrats. Between 2007 and 2021, according to Pew, the share of Democrats and Democratic-leaning independents supporting broadly legalized abortion rose 17 percentage points, to 80%, while the share of Republicans and Republican-leaners saying the same dipped by 4 points, falling to 35%.
Should Breyer retire? When Scalia died at 79 in 2016, Democrats were appalled by Republicans’ ability to block Obama’s nomination and saw the possibility of a new majority of liberal justices vanish.
When Ginsburg died at 87 in 2020, they were shocked at Republicans’ ability to jam through Trump’s nominee and create what could be a long generation of a strong conservative majority.
No time line for Breyer. He has not been plagued by cancer for years like Ginsburg was, and he told CNN’s Joan Biskupic that at 82 — energetic, jogging, meditating and about to turn 83 — he’s happy now to be the senior liberal on the Supreme Court and has no time line to retire.
Wearing shorts and sandals at his vacation home in New Hampshire, he opened up to Biskupic about his satisfaction at leading the liberal justices, albeit a smaller bloc, in conference on key cases and dodged any sort of time line for his departure.
Since Supreme Court justices have lifetime appointments, an anomaly in democratic societies, he can pick his retirement date. But he can’t pick the president or the Senate majority. And who knows when Democrats will have the White House and the Senate majority again.
“Stephen Breyer is playing checkers and Mitch McConnell is playing chess. I mean the — the idea that he is somehow preserving the court by pretending that politics has nothing to do with the Supreme Court, you know, is just delusional,” fumed Jeffrey Toobin, the CNN legal analyst, reacting to Biskupic’s published interview earlier this month on CNN’s “New Day.”
“This is the kind of absence of strategic thinking that has done in Democrats on the Supreme Court and we’ll see if it continues here,” he said.
What are Breyer’s windows? Really, the only timeline that matters at the moment is the one that ends in January 2023, when the next Congress convenes and Republicans could take control of the Senate.
If they do, Breyer would have to wait until January 2025, when he’ll be 86, if he wants the possibility of a Democratic president picking his successor.
If a Republican wins in 2024, he’d have to wait until January 2029, when he’ll be 90. And so on.
Clarence Thomas, who has been on the court longer than Breyer, is just 73. Toobin writes for CNN that in the new conservative majority, Thomas is taking on a leadership role after being sidelined by previous courts.
“In crucial, contested cases, Chief Justice Roberts has increasingly been voting with the three remaining liberals — Stephen Breyer, Sonia Sotomayor and Elena Kagan. If Roberts continues this pattern, that means Thomas will be the senior Justice in several significant 5 to 4 cases and thus enjoy the right to assign majority opinions, including, of course, to himself,” Toobin writes.
He also points out that Thomas openly criticized Roe v. Wade in a 2020 opinion in which Roberts sided with more liberal justices.
The Mississippi plaintiffs borrowed that language, swapping one word, for the thrust of their argument to overturn Roe.